Kaiser Steel Corp.

National Labor Relations Board - Board Decisions

Jul 31, 1973

205 N.L.R.B. 141 (N.L.R.B. 1973)

KAISER STEEL CORPORATION
Kaiser Steel Corporation and Louis O. Morgan
Laborers ' International Union of North America, Local
No. 1184 (Kaiser Steel Corporation) and Louis O.
Morgan . Cases 21-CA-10667 and 21-CB-4228
July 31, 1973
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On March 2, 1973, Administrative Law Judge
James P. Jenson issued the attached Decision in this
proceeding. Thereafter, Respondent Union and Re-
spondent Employer filed exceptions and supporting
briefs, the General Counsel filed limited exceptions
and a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions ' of the Administrative Law Judge and to
adopt his recommended Order as herein modified.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondent Kaiser
Steel Corporation, its officers, agents, successors, and
assigns and Respondent Laborers' International
Union of North America, Local No. 1184, its officers,
representatives, and agents, shall take the action set
forth in the recommended Order of the Administra-
tive Law Judge as modified below.
1. Substitute the following for paragraph I, 1(a) of
the Administrative Law Judge's recommended Order:
"(a) Invoking article 3 as contained in the contract
of September 16, 1970, or as contained in any future
contracts with the Building and Construction Trades
Council of Riverside and San Bernardino Counties,
AFL-CIO, to discharge or discriminate against any
employee who has once satisfied the union member-
ship requirement of the union security clause of said
contract, by requiring the payment of an initiation fee
to another labor organization because he has been
transferred from one job to another within the unit."
2. Substitute the following for paragraph II, 1(a) of
the Administrative Law Judge's recommended Order:
141
"(b) Threatening employees that it will cause, caus-
ing, or attempting to cause Kaiser Steel Corporation
to discharge or discriminate against any employee
under article 3, as contained in the contract of Sep-
tember 16, 1970 , or as contained in any future con-
tract, between the Building and Construction Trades
Council of Riverside and San Bernardino Counties,
AFL-CIO, and Kaiser Steel Corporation for non-
membership in Respondent Laborers ' International
Union of North America, Local 1184, because an
employee , who has once satisfied the union member-
ship requirement pursuant to the union security
clause of said contract , has not paid an initiation fee
to it when he has been transferred from one job to
another."
3. Substitute the attached notices for the notices
attached to the Administrative Law Judge 's recom-
mended Order.
1 We agree with the Administrative Law Judge that Respondent Union
violated Sec 8(b)(1)(A) and (2) and Respondent Employer violated Sec
8(a)(1) and (3) of the Act We do so, however, solely because the requirement
of a second initiation fee upon transfer from one job to another within the
certified unit does not constitute an initiation fee "uniformly required" with-
in the meaning of the proviso to Sec 8(a)(3), and thus cannot be exacted as
a requirement for continued employment Variations in the amount of dues
reasonably related to differences in earning potential among the several job
classifications in a unit may, under some circumstances, be sufficiently "uni-
form" in relation to the wages received to be sanctioned by the proviso. But
repetitive initiation fees assessed during the course of continuous employ-
ment only upon those employees who work in more than one job classifica-
tion within the unit, and not assessed upon others who work in but one
classification, seem clearly to violate both the letter and spirit of the proviso's
uniformity requirement.
In accord with the General Counsel's exceptions, we find that Respondent
Union also violated Sec 8(b)(1)(A) when its agents, Sanders and Smith,
threatened Morgan with discharge if he failed to comply with Respondent
Union's membership requirements
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT, under article 3 of our contract
with The Building and Construction Trades
Council of Riverside and San Bernardino Coun-
ties, AFL-CIO, discharge or discriminate against
Louis O. Morgan or any other employee, who has
once satisfied the union membership require-
ment of that contract, by requiring him to pay an
intiation fee to another labor organization be-
cause he has been transferred from one job to
another within the unit.
WE WILL offer immediate and full reinstate-
ment to Louis O. Morgan to his former or a
205 NLRB No. 34
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
substantially equivalent position, without preju-
dice to his seniority or any other rights and privi-
leges, and
WE WILL jointly and severally with Laborers'
International Union of North America, Local
No. 1184, make good to him with interest, all pay
he lost by reason of his discharge of February 9,
1972.
KAISER STEEL CORPORA-
TION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Eastern Columbia Building, 849
South Broadway, Los Angeles, California 90014,
Telephone 213-688-5229.
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT , under article 3 of the collective-
bargaining agreement between Kaiser Steel Cor-
poration and the Building and Construction
Trades Council of Riverside and San Bernardino
Counties , AFL-CIO, cause , threaten to cause, or
attempt to cause Kaiser Steel Corporation to dis-
charge or otherwise discriminate against Louis O.
Morgan or any other employee who has once
satisfied the union membership requirement of
that contract , by requiring him to pay another
initiation fee because he has been transferred
from one job to another within the unit.
WE WILL write Kaiser Steel Corporation and
Louis O. Morgan that we withdraw our objec-
tions to its employment of Morgan or to his rein-
statement, and
WE WILL, jointly and severally , with Kaiser
Steel Corporation , make good to him with inter-
est, all pay he lost by reason of his discharge on
February 9, 1972.
Dated By
LABORERS' INTERNATIONAL
UNION OF NORTH AMERICA,
LOCAL No. 1184
(KAISER STEEL CORPORA-
TION)
(Labor Organization)
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Eastern Columbia Building, 849
South Broadway, Los Angeles, California 90014,
Telephone 213-688-5229.
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON, Administrative Law Judge: This matter
was heard before me in Los Angeles, California, on Novem-
ber 28, 1972. The consolidated complaint, which issued on
September 25, 1972, pursuant to separate charges filed on
February 22, 1972, alleges the Company violated Section
8(a)(1) and (3) and the Union violated Sections 8(b)(1)(A)
and (2) of the Act. Briefs were filed by the Respondent
Employer and the General Counsel.
Upon the entire record, including oral argument and
briefs, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
At all times material herein, Kaiser Steel Corporation has
been engaged in the operation of iron ore mining and mill-
ing facilities in the Eagle Mountain, California, area. In the
conduct of its business operations, it annually purchases
and receives goods valued in excess of $50,000 directly from
points located outside the State of California. Upon these
facts, it is found that at all times material herein Kaiser has
been engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
11 THE LABOR ORGANIZATIONS INVOLVED
Laborers' International Union of North America, Local
No. 1184; International Brotherhood of Teamsters, Chauf-
feurs and Helpers, Local No. 467; and Building and Con-
struction Trades Council of Riverside and San Bernardino
KAISER STEEL CORPORATION
Counties , AFL-CIO, each is a labor organization within the
meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The Building and Construction Trades Council of River-
side and San Bernardino Counties , AFL-CIO, herein called
Council , is the certified collective-bargaining representative
of all production and maintenance employees , including
truckdrivers and warehousemen , at Kaiser's Eagle Moun-
tain iron ore mining facilities , excluding certain classifica-
tions not material herein . There have been successive
collective-bargaining agreements between the parties for a
number of years, the most recent agreement being effective
from September 16, 1970, to September 15, 1973. The Coun-
cil is composed of five labor organizations , including the
Laborers and Teamsters ,' who participate in the collective-
bargaining negotiations with Kaiser and ratify and sign the
resulting agreements . While there is no employee member-
ship as such in the Council , the union-security requirement
in the collective-bargaining agreement is met by member-
ship in one of the five unions comprising the Council, de-
pending upon the employee 's job and the union craft or
work jurisdiction . Thus, a truckdriver is required to join the
Teamsters , a laborer is required to join the Laborers, etc.
The union-security clause in the contract provides in perti-
nent part that "all employees covered by this agreement
shall within 31 days after employment . . . become mem-
bers of the appropriate craft union and shall remain mem-
bers of said craft union as a condition of employment
.. ." In late 1971 , Morgan was employed as a truckdriver
and belonged to the Teamsters . In December of that year,
the employer announced a temporary business layoff of
approximately 1,100 employees . Morgan was one of ap-
proximately 70 employees who were retained in accordance
with certain "bumping" rights acquired under the contract.
Morgan was assigned to the camp maintenance department
which is within the craft jurisdiction of the Laborers, and
commenced work in that job on January 3, 1972.2 After
working 2 or 3 weeks , he was advised that he had 31 days
from the commencment of work in the camp maintenance
department to become a member of the Laborers . Morgan,
already a member in good standing of the Teamsters , failed
to tender the uniform initiation fee and dues to the Laborers
until February 9. On that date Kaiser terminated him in
accordance with the Laborers ' written request dated Febru-
ary 1. The General Counsel does not contend the union-
security clause is unlawful on its face , but does contend, on
the basis of the Ormet 3 case , that the application of the
union-security clause to an intraunit transfer is a violation
of the Act. Both Respondents deny the commission of any
unfair labor practices and seek to distinguish the Ormet case
on its facts. Thus, the issue is whether , under the circum-
stances of this case , Morgan can lawfully be compelled to
1 The other labor organizations are locals of the Operating Engineers,
IBEW, and Carpenters
2
All dates are in 1972 unless otherwise stated
3Ormet Corporation , 151 NLRB 117
143
join another labor organization pursuant to a union -security
clause when he is transferred from one job to another within
the same bargaining unit.
B. The Discharge of Morgan Under the
Union Security Provision of the Contract
Morgan was first employed at Kaiser 's Eagle Mountain
operations in February 1960 as a laborer in the camp main-
tenance department and became a member of the Laborers
Union. In 1964 he was promoted to heavy duty truckdriver
which was within the Teamsters jurisdiction. Accordingly,
Morgan joined the Teamsters Union because he thought he
was required to do so under the collective -bargaining agree-
ment 4 The initiation fee was $87 and the monthly dues $11,
which were paid by checkoff. He remained a dues paying
member of the Teamsters until he was issued a withdrawal
card on February 8, after having paid his dues through that
month.
Having found its production of iron ore and iron ore
pellets for export to world markets had become unprofita-
ble, on December 20, 1971, Kaiser announced a temporary
shutdown of the Eagle Mountain mining operations in or-
der to make changes to strengthen its long -range position as
a source of supply for its Fontana, California, steel mill. It
was expected that the shutdown would be for a period of 4
to 6 weeks. Prior to the layoff of approximately 1,100 em-
ployees resulting from the temporary shutdown, Kaiser and
the five unions comprising the Council met and agreed that
laid off employees would be on vacation status so that
health and welfare benefits would continue during the lay-
off. On December 23, 1971, Kaiser posted the names of
approximately 70 employees who would be retained during
the layoff commencing January 3. By reason of his employ-
ment in the camp maintenance departmement from 1960 to
1964, Morgan had acquired the right under the collective-
bargaining agreement to "bump" back into the camp main-
tenance department. The Company decided that the only
effective way to compile the list of employees with "bump-
ing back" rights would be to check personnel records and
make an affirmative assignment based upon seniority.
Those that did not wish to bump back could decline the
assignment and accept layoff, but if they did so they would
lose all preexisting bumping back rights to which they had
been entitled . The Company viewed the automatic applica-
tion of the bumping back privileges as the corollary to pro-
motion rights under the contract. An employee who had
acquired promotion rights was automatically promoted,
and it was incumbent upon him , if he wanted to forego the
promotion, to so advise the Company. Several employees
did in fact waive their bumping privilege and elected to
accept layoff . I am satisfied that Morgan was well aware of
his option and, by his failure to request layoff, elected to
exercise his bumping back privilege.5
On January 3 Morgan reported to the camp maintenance
department and was assigned as a bull cook or dorm atten-
dant with the duty of maintaining and cleaning the barracks
He let his membership in the Laborers lapse when he became a truckdri-
ver instead of taking out a withdrawal card
5 Morgan testified on cross-examination that he had accrued 3 weeks'
vacation and that he wanted to take it later on instead of in January
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
area of the camp. Under the collective-bargaining agree-
ment the camp maintenance department is within the craft
lines or work jurisdiction of the Laborers Union.
Approximately 2 or 3 weeks after January 3, Sanders, the
Laborers business agent, contacted Morgan on the job and
told him that he would have to join the Laborers Union or
be terminated and that he had 31 days from the time he
started working in the camp maintenance department with-
in which to do so. Morgan advised Sanders that he would
like to take the full time because the assignment was tempo-
rary and he figured he would be back to work as a heavy
duty truckdriver. Sanders advised him to sign a checkoff
authorization, which Morgan stated he didn't want to do
because he was already on checkoff to the Teamsters. One
of the building trades stewards testified that on two occa-
sions he asked Morgan "If he had signed the checkoff au-
thonzation into the Laborers," and that Morgan's response
was that he had not.
On January 24, Morgan received word his father had
died. He therefore asked for and was granted 2 weeks' vaca-
tion through February 7. He drove to east Texas, returning
on or about January 30. On January 31, Morgan sent a letter
to the Laborers Indio, California, office enclosing a check
for $10 "as partial payment of dues and initiation fees as
required to join your Union." The letter further stated that
"due to financial hardship, I am unable to pay any more at
this time. I will make every effort to pay more each month
until I am paid up."
On February 1, John L. Smith, financial secretary and
business manager of the Laborers', wrote the company as
follows:
We understand that L. O. Morgan is presently on
emergency leave of absence.
Please note that unless this employee can either show
a clearance card or receipt supporting his membership
with a Laborers' Local Union, should he return from
his leave of absence on February 2 or thereafter, he
should be removed from the job, in conformity with the
terms of the agreement.
Would appreciate your cooperation in following
these instructions.
On February 2, Sanders wrote the following letter to Mor-
gan:
In accordance with the contract between Kaiser Steel
and the Union, you must be a paid up member of the
Laborers if you work in the laborers' classification for
31 days. We are returning your personal check in the
amount of $10 and any further correspondence regard-
ing Laborers Local 1184 should be made direct to the
main office at 1184 La Cadena, Riverside, California,
92501, Attention to John L. Smith, Financial Secretary.
On February 8 at 7 a.m., Morgan reported back for work
and was met at the gate by James T. Bruce, the housing
supervisor under whom Morgan worked in the camp main-
tenance department. Bruce had been instructed by Robert
Dale, Kaiser's administrative superintendent, not to let
Morgan go to work until he had been "cleared" by the
Laborers. Bruce so advised Morgan and told him to come
back when he had been cleared. Bruce reported this conver-
sation to Hughes, Kaiser's corporate manager in charge of
the Eagle Mountain operation, who instructed Bruce to
"find Mr. Morgan even if you have to go to his house and
you tell him to get this thing resolved by tomorrow morn-
ing." Bruce located Morgan nearby and advised him that he
would "have to get this matter resolved with the Union by
in the morning" or be terminated. Morgan then drove to the
Laborers office in Indio to make arrangements to pay the
initiation fee and get a clearance for work. As the woman
in the office apparently lacked any authority to act in the
matter, she placed a phone call to the Riverside office and
Morgan talked first to Sanders and then to Smith who in-
formed him that he would have to comply with the Laborers
membership requirements or be terminated.' Apparently
Morgan failed to tender the Laborers initiation fee on that
date. While Smith testified that he did not talk to Morgan
until after the Company had terminated him, he was unsure
of the date. I am satisfied the conversation took place on
February 8 and that the substance was that Morgan had to
pay the initiation fee before he could get clearance to return
to work. From Indio, Morgan drove to the Teamsters office
in Rialto and spoke to business agent, William C. Mann. It
is clear that Morgan did not want to pay the Laborers
initiation fee and asked Mann if he could intercede on his
behalf. Mann placed a phone call to Hughes who informed
him that the Company had received a letter from the Labor-
ers asking for Morgan's termination and that the Company
always held such requests for a few days before taking any
action. He told Mann to tell Morgan to "hurry up." Morgan
explained to Mann that he had "bumped down" because he
wasn't sure what he could do and he did not want to take
his vacation at that time; that he was short of money and
rejoining the Laborers would work a financial hardship on
him. Mann testified that he offered to call Smith on
Morgan's behalf, which offer Morgan declined, stating that
he was not going to pay that "blood money." 7 Morgan took
a withdrawal from the Teamsters at this time, having appar-
ently concluded that he would have to join the Laborers if
he was going to be able to work.'
Morgan testified that on February 9 he called the Labor-
ers Indio office regarding payment of the initiation fee but
was told there was no one there who could accept the money
and he should mail or wire it to the Riverside office. Instead,
he drove to Riverside with the intention of paying the initia-
tion fee. Upon arriving he was informed that the money had
to be delivered personally to Smith and that arrangements
would be made for him to pay the money at the Indio office
on the following day. After first calling, Morgan drove to
Indio the morning of February 10, again with the intention
of paying the initiation fee and dues. When he arrived San-
ders asked him if he knew whether he still had a job with
the Company. As Morgan replied that he was not sure,
Sanders telephoned the Company and was advised that
6 In the light of this conversation, Smith's letter of February 1, Sanders
letter of February 2, and his conversation with Morgan in mid-January, and
my finding hereafter, the Laborers motion to strike paragraphs 12(a) and (b)
of the consolidated complaint is denied
7 Morgan denied he made such a statement However, I credit Mann's
account since Morgan admitted on several occasions he did not want to
rejoin the Laborers Insofar as working a financial hardship, the initiation fee
could have been handled by checkoff over a period of time
8 By the end of January it was common knowledge that because of a strike
at the Fontana mill, the mine layoff would be extended indefinitely
KAISER STEEL CORPORATION
Morgan had been terminated on February 9. Therefore,
Morgan did not pay the Laborers initiation fee and dues.
On February 11 Morgan received a separation notice from
the Company stating he had been terminated on February
9 "in conformity with the agreement: Article 3, and letter
to Mr. E. K. Olson from Labor Local No. 1184 of 2-1-72."
The Respondents represented at the trial that had Mor-
gan accepted layoff, or had he not been terminated for
failure to pay the Laborers initiation fee and dues, he would
in all likelihood have been recalled to his former truckdri-
ver job sometime in March. However, had he been working
in the camp maintenance department at the time of recall,
he would then have had the option of waiving recall as a
truckdriver and remaining in the camp maintenance depart-
ment . The employer has a policy of not rehiring employees
who have either quit or been terminated.
C. The Merits
With respect to the merits of the consolidated complaint,
the General Counsel contends that once an employee has
satisfied the union membership requirement pursuant to a
union-security clause in a collective-bargaining agreement
between an employer and the certified collective-bargaining
representative, here the Council, he may not be required, as
a condition of continued employment, to pay an initiation
fee to another labor organization, here the Laborers, merely
because he had been transferred from one job to another
within the same collective-bargaining unit. The General
Counsel points out that there is no question but that a
transfer from onejob classification to another job classifica-
tion within the same bargaining unit cannot serve as a law-
ful basis for requiring an employee to satisfy the initiation
fee requirement of the bargaining representative for a sec-
ond time, and that the result should not be different because
the collective-bargaining representative is a council com-
posed of several labor organizations as in the instant case.
The General Counsel relies upon the Ormet case , supra,
which the Respondents contend is distinguishable. While
admitting the Council is the certified collective-bargaining
representative, the Respondents emphasize the fact that the
Council is composed of craft unions which historically have
taken the dominant role in negotiations and representing
the employees. They point out that although the collective-
bargaining agreement is excuted by Kaiser and the Council,
it is ratified and signed by each of the craft unions; the
union-security clause requires membership in the "appro-
priate craft union" within 31 days after employment; there
is no employee membership in the Council; that the con-
tract provides for checkoff of union dues to "the appropri-
ate craft" as well as transfer of checkoff when an employee
is reassigned to a job classification represented by another
craft; that craft stewards represent employees in the first
two steps of the grievance procedure; that the composition
of the steward committee under the bargaining agreement
requires a representative of each craft; and that wages in the
collective-bargaining agreement are set forth by craft. Con-
trary to the General Counsel, the Employer contends there
can be no contention that membership in one of the crafts
is membership which would meet the requirements of the
union-security clause for all classifications represented by
145
the five craft unions.
In Ormet, a trades council comprised of nine unions gen-
erally related to crafts was the certified collective-bargain-
ing representative of Ormet's production and maintenance
employees. The union-security provision in the contract be-
tween the employer and the trades council required, as a
condition of employment, membership in "the Union." As
there was no employee membership as such in the trades
council, the membership requirement in the contract was
met through membership in one of the craft unions, each of
which had separate membership requirements and different
scales of initiation fees and dues. Fox, the discnminatee, a
pipefitter whose craft was embraced by the Pipefitters'
Union, applied for membership into the Engineers' Union
because it was "cheaper" to join than the Pipefitters. He
executed a checkoff authorization to the Engineers which he
at no time revoked. The trades council demanded Fox's
discharge for his failure to join the appropriate craft, the
Pipefitters. After the company refused to do so on the
ground that Fox was a member in good standing with the
Engineers, one of the unions within the trades council, the
Engineers declared him not "in good standing with" it, and
Fox was informed that under the contract he had tojoin the
Pipefitters. Fox refused because he did not wish to pay its
initiation fee. Upon the trades council's demand, the com-
pany discharged Fox for his failure to join "the Union" in
accordance with the contract. The Trial Examiner, whose
decision was adopted by the Board, found that Fox had
been ousted from membership in the Engineers for reasons
other than the failure to pay the uniformly required dues,
and that his discharge for failure to acquire membership in
the Pipefitters was a violation of Section 8(a)(3) and 8(b)(2)
of the Act. The case at hand, in my view, is even stronger
than the General Counsel's case in Ormet, for here Morgan
was, and remained through February, a paid-up member in
good standing in the Teamsters, one of the unions compris-
ing the Council. Moreover, the Laborers was not the certi-
fied collective-bargaining representative as was the trades
council in Ormet. Nor do I believe the contract providing
for membership in the "appropriate craft union" requires a
contrary result in the light of the clear terms of the statute.
It is clear that the Laborers attempted to, and did, cause
discrimination against Morgan for nonpayment of an initia-
tion fee and union dues in violation of Section 8(b)(2) of the
Act, unless its conduct was sanctioned by a lawful union-
security agreement under the proviso to Section 8(a)(3) of
the Act. In the absence of such an agreement, Kaiser's
discrimination against Morgan also was not protected and
must be held in violation of Section 8(a)(3).
The proviso to Section 8(a)(3) authorizes, under certain
conditions, that a labor organization and an employer may
enter into a collective-bargaining agreement making "mem-
bership therein" a condition of employment "on and after
the 30th day following the beginning of such employment
(i) if such labor organization is the representative of the
employees as provided in Section 9(a), in the appropriate col-
lective-bargaining unit covered by such agreement when
made...." Section 9(a) states explicitly that "representa-
tives designated or selected . . . by the majority of the em-
ployees in a unit . . . shall be the exclusive representative of
all the employees in such unit . . . ." (Emphasis supplied.)
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The consolidated complaint alleges, and the Respondents
admit, that the Council was certified in 1964 as the exclusive
representative of all production and maintenance employ-
ees including truckdrivers and warehousemen. I am, of
course, unaware of the circumstances which led the Council
to seek certification in the comprehensive unit. The fact
remains, however, that the Council was certified, and is,
under the statute, the exclusive representative of the employ-
ees in a unit which encompasses several crafts. As the exclu-
sive representative of the employees in the certified
collective-bargaining unit, the Council was the only labor
organization permitted under the statute to enter into a
union security agreement requiring "membership therein on
or after the 30th day following the beginning of such em-
ployment...... It follows, then, that the Council is the only
labor organization which may lawfully cause a termination
pursuant to the agreement.'
What the Respondents seek to do here is to circumvent
the Board's certification and substitute the Laborers and the
other craft unions comprising the Council in place of the
Council as the certified collective-bargaining representative,
and to fragmentize the certified unit into five separate units
in accordance with their respective craft lines. It may be that
this result may be accomplished through a representation
proceeding, but it may not be accomplished through the
wording contained in a union-security agreement which, in
any event, when read literally, does not require membership
by an employee in more than one labor organization. In this
regard, it is noted that nowhere in the collective-bargaining
agreement is there any requirement that an employee join
more than one labor organization. The only requirement in
the union security clause is that employees "shall within 31
days after employment by the employer . . . become mem-
bers of the appropriate craft union and shall remain members
of said craft union as a condition of employment... .
Morgan had become a member of the Teamsters, and re-
mained a paid-up member of "said craft union" at the time
of his discharge. In these circumstances it cannot properly
be held that payment of the Laborers initiation fee and dues
constitutes an initiation fee and dues uniformly required
within the sanction of the provisos of Section 8(a)(3).
Hence, his termination was for reasons other than his failure
to tender the uniform initiation fee and dues required as a
condition of acquiring or retaining membership, and was in
violation of Section 8(a)(3) and (1); and the Laborers, by
causing such termination, violated Section 8(b)(2) and
(1)(A) of the Act. A contrary result would, in my view, be
contrary to the statute and inequitable. As Judge Ross stat-
ed in N. L. R. B. v. International Woodworkers of America Lo-
cal Union No. 13-433, 264 F.2d 649 at 658 (C.A. 9, 1959):
The right to enjoy the blessings of life, liberty and the
pursuit of happiness is founded on the right to work.
Deprived of that right, man becomes a groveling ani-
mal. This being true, it follows that every statute, deci-
sion , contract, rule or decree impinging upon that right
should be carefully scrutinized and as carefully con-
9 Cf Sucrest Corporation, 165 NLRB 596
strued. Even without the warning provisions of the
Wagner Act and Sections 8(a)(3) and 8(b)(2) of the
Taft-Hartley Act, we should be inclined to interpret the
"non-membership" provisions of this type of union-
employer contract in such a manner as to eliminate, so
far as possible, the inherent harshness of such a provi-
sion . However, we need not base our approach to this
problem on any court-conceived philosophy of human
kindness, for Congress recognized the danger inherent
in any agreement whereby a man can be deprived of his
right to work under color of law. Its views are explicit
in the provisions of the Wagner and Taft-Hartley Act.
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III,
above, occurring in connection with the operations of the
company set forth in section I, above, have a close, intimate,
and substantial relation to trade, traffic and commerce
among the several states, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V THE REMEDY
Havind found that each of the Respondents has commit-
ted an unfair labor practice, I shall recommend that the
Company reinstate Morgan to his former or substantially
equivalent position and that it, jointly and severally with the
Laborers, make Morgan whole for any loss of pay he may
have suffered as a result of the discrimination against him,
by paying to him a sum of money equal to the amount he
would have normally earned as wages from the date of the
discrimination until compliance by each Respondent, res-
pecitvely, with the reinstatement provisions herein provid-
ed, less his net earnings during the period. Backpay shall be
computed with interest on a quarterly basis in the manner
prescribed by the Board in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716. I shall further recommend that the Laborers notify the
Company in writing, and furnish a copy thereof to Morgan,
that it withdraws its objection to Morgan's employment and
that it requests his reinstatement.
CONCLUSIONS OF LAW
On the basis of the foregoing findings of fact, and the
entire record in this proceeding, I make the following con-
clusions of law:
1. Kaiser is, and has been at all material times, an em-
ployer within the meaning of Section 2(2) of the Act.
2. The Laborers, the Teamsters, and the Council are, and
have been at all times material herein, labor organizations
within the meaning of Section 2(5) of the Act.
3. By discharging Louis O. Morgan at the request of the
Laborers, Kaiser has discriminated in regard to his hire and
tenure of employment in violation of Section 8(a)(3) and (1)
of the Act.
4. By causing Kaiser to discriminate in regard to the hire
and tenure of employment of Morgan in violation of Sec-
KAISER STEEL CORPORATION
tion 8(a)(3) of the Act, the Laborers has violated Section
8(b)(2) and (1)(A) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER
A. Respondent, Kaiser Steel Corporation, its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Invoking article 3 as contained in the contract of
September 16, 1970, or as contained in any future contract,
to discharge or discriminate against any employee for non-
membership in any labor organization comprising the
Building and Construction Trades Council of Riverside and
San Bernardino Counties, AFL-CIO, where it has reason-
able grounds for believing such employees have complied
with the membership requirement of said contract by mem-
bership in any labor organization comprising said Council.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act , in a manner similar to
that described in (a) above.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Louis O. Morgan immediate and full reinstate-
ment to his former or a substantially equivalent position,
without prejudice to his seniority or other rights and privi-
leges.
(b) Jointly and severally with Respondent Laborers' In-
ternational Union of North America, Local No. 1184, make
Louis O. Morgan whole for any loss of pay by reason of his
discharge on February 9, 1972, in the manner stated in the
section entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, Social Security payment records, timecards, per-
sonnel records and reports, and all other data relevant to
compliance with paragraphs (a) and (b) above.
(d) Post at its Eagle Mountain, California, facility copies
of the attached notice marked "Appendix A." Copies of
Appendix A to be furnished by the Regional Director for
Region 21, shall, after being duly signed by the company's
representative, be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that the notices
are not altered, defaced or covered by any other material.
(e) Upon being furnished the same by the Regional Di-
rector, post the notice marked "Appendix B," in the same
147
manner as Appendix A.
(f) Notify the Regional Director for Region 21, in writ-
ing, within 20 days from the date of the receipt of this
Decision, what steps it has taken to comply with the fore-
going recommended Order
B. Respondent, Laborers' International Union of North
America, Local No. 1184, its officers, representatives, and
agents, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Kaiser Steel Corpora-
tion to discharge or discriminate against any employee un-
der Article 3, as contained in the contract of September 16,
1970, between the Building and Construction Trades Coun-
cil of Riverside and San Bernardino Counties, AFL-CIO,
and Kaiser Steel Corporation, or as contained in any future
contract, for nonmembership in Respondent Laborers' In-
ternational Union of North America, Local No. 1184,
where another labor organization has been designated or
selected by a majority of the employees in a unit appropriate
for collective-bargaining purposes, as the exclusive repre-
sentative of the employees in such unit, or where such em-
ployees have complied with the membership requirement in
said contract by membership in any other labor organiza-
tion comprising said Council.
(b) In any similar manner restraining or coercing em-
ployees in the exercise of rights guaranteed in Section 7 of
the Act.
2. Take the following affirmative action which it is found
will effectuate the policies of the Act:
(a) Notify Respondent, Kaiser Steel Corporation, with a
copy to Louis O. Morgan, that it withdraws its objection to
its employing Louis O. Morgan and will not oppose his
reinstatement.
(b) Jointly and severally with Kaiser Steel Corporation
make whole Louis O. Morgan for any loss of pay sustained
by the reason of his discharge on February 9, 1972, in the
manner set forth in the section entitled "The Remedy."
(c) Post in its offices and meeting halls, copies of the
attached notice marked "Appendix B." Appendix B, to be
furnished by the Regional Director for Region 21, shall,
after being duly signed by Respondent Laborers' official
representative, be posted by it immediately upon its receipt
thereof and be maintained and caused to be maintained by
it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to members are custom-
anly posted. Reasonable steps shall be taken by Respondent
Laborers and its agents to insure that such notices are not
altered, defaced or covered by any other material.
(d) Forward to the said Regional Director signed copies
of Appendix B for posting by Kaiser Steel Corporation at
its Eagle Mountain facility for 60 consecutive days in places
where notices to employees are customarily posted.
(e) Notify the Regional Director for Region 21, in writ-
ing, within 20 days from the date of receipt of this Decision
what steps it has taken to comply with the foregoing.